Archive for September, 2009

In four years of researching and writing about Guantánamo, I have become used to uncovering shocking information, but for sheer cynicism, I am struggling to think of anything that compares to the revelations contained in the unclassified ruling in the habeas corpus petition of Fouad al-Rabiah, a Kuwaiti prisoner whose release was ordered last week by Judge Colleen Kollar-Kotelly (PDF). In the ruling, to put it bluntly, it was revealed that the US government tortured an innocent man to extract false confessions and then threatened him until he obligingly repeated those lies as though they were the truth.

The background: lies hidden in plain sight for five years

To establish the background to this story, it is necessary for me to return to my initial response to the ruling a week last Friday, before these revelations had been made public, when, based on what I knew of the case from the publicly available documents, I explained that I was disappointed that the Obama administration had pursued a case against al-Rabiah, alleging that he was a fundraiser for Osama bin Laden and had run a supply depot for al-Qaeda in Afghanistan’s Tora Bora mountains, for two particular reasons.

The first was because a CIA analyst had interviewed al-Rabiah at Guantánamo in the summer of 2002 and had concluded that he was an innocent man caught at the wrong time and in the wrong place; and the second was because, although al-Rabiah had said that he had met bin Laden and had been present in the Tora Bora mountains, he had provided an innocent explanation for both occurrences. He had, he said, been introduced to bin Laden on a trip to Afghanistan to investigate proposals for a humanitarian aid mission, and he had been at Tora Bora — and compelled to man a supply depot — because he was one of numerous civilians caught up with soldiers of al-Qaeda and the Taliban as he tried to flee the chaos of Afghanistan for Pakistan, and had been compelled to run the depot by a senior figure in al-Qaeda.

These appeared to be valid explanations, especially as al-Rabiah, a 42-year old father of four children, had no history of any involvement with militancy or terrorism, and had, instead, spent 20 years at a management desk job at Kuwait Airways, and had an ownership interest in some health clubs. Moreover, he had a history of legitimate refugee relief work, having taken a six-month approved leave of absence from work in 1994-95 to do relief work in Bosnia, having visited Kosovo with the Kuwaiti Red Crescent in 1998, and having made a trip to Bangladesh in 2000 to delivery kidney dialysis fluid to a hospital in the capital, Dhaka.

As a result, it appeared to me a week last Friday that Judge Kollar-Kotelly granted al-Rabiah’s habeas petition because neither his meeting with bin Laden nor his presence in Tora Bora indicated that he was either a member of, or had supported al-Qaeda or the Taliban.

However, now that Judge Kollar-Kotelly’s ruling has been issued, I realize that the account given by al-Rabiah during his Combatant Status Review Tribunal at Guantánamo in 2004 — on which I based my account of his activities — was a tissue of lies, and that the truth, hidden for over six years, is that, like torture victims groomed for show trials throughout the centuries, he made up false stories under torture, and repeated them obediently, fearing further punishment and having been convinced that he would never leave Guantánamo by any other means.

An introduction to the torture revelations, and an endorsement of al-Rabiah’s explanations about his time in Afghanistan

In her ruling, Judge Kollar-Kotelly methodically dissected the government’s case to reveal the chilling truth. After noting, initially, that the “evidentiary record” was “surprisingly bare,” because the government “has withdrawn its reliance on most of the evidence and allegations that were once asserted against al-Rabiah, and now relies almost exclusively on al-Rabiah’s ‘confessions’ to certain conduct,” she added, with a palpable sense of disbelief:

Not only did al-Rabiah’s interrogators repeatedly conclude that these same confessions were not believable — which al-Rabiah’s counsel attributes to abuse and coercion, some of which is supported by the record — but it is also undisputed that al-Rabiah confessed to information that his interrogators obtained from either alleged eyewitnesses who are not credible and as to whom the Government has now largely withdrawn any reliance, or from sources that never even existed … If there exists a basis for al-Rabiah’s indefinite detention, it most certainly has not been presented to this Court.

In dealing with al-Rabiah’s background, and his reasons for traveling to Afghanistan, Judge Kollar-Kotelly was required to consider his own assertion that, after a preliminary ten-day visit in July 2001 to identify areas where humanitarian aid might be delivered, he returned in October 2001 “to complete a fact-finding mission related to Afghanistan’s refugee problems and the country’s non-existent medical infrastructure,” against the government’s claim that he was “‘not an aspiring aid worker caught up in the front lines of the United States war against al-Qaeda’ but instead was someone who traveled to Afghanistan in October 2001 as a ‘devotee of Osama bin Laden who ran to bin Laden’s side after September 11th.’”

Concluding that “The evidence in the record strongly supports al-Rabiah’s explanation,” Judge Kollar-Kotelly noted that he had officially requested leave prior to his departure, and quoted from two letters sent to his family. In the first, on October 18, 2001, he explained that “for ten days he assisted with the delivery of supplies to refugees and that he was able to take video ‘reflecting the tragedy of the refugees,’ but that he was unable to leave Afghanistan through Iran (the route he took to enter the country) because the borders had been closed.” As a result, he “wrote in his letter that he and an unspecified number of other persons decided ‘to drive four trucks to Pakistan making our way to Peshawar,’” and he also asked his brother to notify his boss at Kuwait Airlines that he was having difficulties returning to Kuwait on time.

After noting that “The evidence in the record establishes that al-Rabiah did, in fact, travel across Afghanistan towards Peshawar, ultimately getting captured (unarmed) by villagers outside of Jalalabad … on approximately December 25, 2001” (with Maher al-Quwari, a Palestinian who also ended up in Guantánamo), Judge Kollar-Kotelly quoted from a second letter sent to his family, in which — ironically, in light of what was to come — he wrote that he was “detained by the American troops and thanks to God they are good example[s] of humanitarian behavior.” He added that he was “detained pending verification of [his] identity and personality,” and that the “investigation and verification procedures may last for a long time due to the great number of detained Arabs and other persons” who had been fleeing the situation in Afghanistan, which “turned upside down between one day and night and every Arab citizen has become a suspect.”

Discrediting the government’s unreliable witnesses

Moving on to the government’s key allegations — about Osama bin Laden and Tora Bora — Judge Kollar-Kotelly dismissed the allegations regarding al-Rabiah’s supposed activities in Tora Bora, which were made by another prisoner who claimed that he “was told that al-Rabiah was in charge of supplies at Tora Bora,” by noting that, “Although his allegations are filled with inconsistencies and implausibilities, the Government continues to rely on him as an eyewitness.” She also noted that, although the witness had identified al-Rabiah as the man under discussion, from his kunya (nickname), Abu Abdullah al-Kuwaiti, the government had conceded that another Abu Abdullah al-Kuwaiti, an actual al-Qaeda operative named Hadi El-Enazi, was present in Tora Bora, and also noted that an interrogator had expressed doubt about the supposed eyewitness at the time (much of the ruling is redacted, but this seemed to involve a claim that al-Rabiah’s oldest son was with him in Afghanistan, when this was demonstrably not the case).

Judge Kollar-Kotelly also dismissed two other sets of allegations by the supposed eyewitness. Noting further “inconsistencies and impossibilities” in his accounts, she stated that “the Court has little difficulty concluding that [his] allegations are not credible,” and explained that, to reach this conclusion, she had also drawn on statements provided by al-Rabiah’s lawyers, which further undermined his reliability, “based on, among other things, undisputed inconsistencies associated with his allegations against other detainees,” and his medical records, which obviously indicated mental health problems (although the description was redacted). “At a minimum,” she added, “the Government would have had to corroborate [his] allegations with credible and reliable evidence, which it has not done.”

Osama bin Laden, it then transpired, appeared in allegations made by a second prisoner, who “alleged that al-Rabiah attended a feast hosted by Osama bin Laden,” where he “presented bin Laden with a suitcase full of money.” This source also alleged that al-Rabiah “served in various fighting capacities in the Tora Bora mountains,” and that he “funneled money to mujahadeen in Bosnia in 1995.”

After noting that the government had dropped “almost all” of these allegations, except for the one relating to Bosnia, Judge Kollar-Kotelly stated, witheringly, “the only consistency with respect to [these] allegations is that they repeatedly change over time.” For particular condemnation, she singled out one claim that the feast had taken place in August 2001 (when al-Rabiah was in Kuwait, before his return to Afghanistan in October 2001), amongst other more outlandish claims, including an absurd allegation that al-Rabiah had trained the 9/11 hijackers.

As with the first supposed eyewitness, Judge Kollar-Kotelly noted that there were “multiple exhibits in the record demonstrating [his] unreliability as a witness” (although, sadly, the exact number of prisoners against whom he had made verifiably false allegations was redacted), and concluded that, although the many “inconsistencies and impossibilities” in his statements “raise, at a minimum, a serious question about [his] mental capacity to accurately make allegations against al-Rabiah,” the government “did not address them at the Merits Hearing” in August.

After dismissing a third supposed eyewitness, because he had withdrawn his allegation (which was redacted) several months after making it, Judge Kollar-Kotelly dismissed a fourth, even though it was “undisputed” that al-Rabiah actually had contact with him in Afghanistan. Despite redactions, it seems that this man was Maher al-Quwari, and that his statement involved second-hand hearsay about al-Rabiah being seen with a gun. While this was sufficiently weak for the judge not to accept it without further corroboration, she also made a point of discounting it because the supposed witness only “made this allegation while he was undergoing a cell relocation program at Guantánamo called the ‘frequent flier program,’ which prevented a detainee such as [redacted] from resting due to frequent cell movements.”

While the description of a “cell relocation program” sounds relatively benign, Judge Kollar-Kotelly made a point of noting that it was, in fact, a program of sleep deprivation, adding that, “According to a report published by the Senate Armed Services Committee concerning the treatment of detainees in United States custody, sleep deprivation was not a technique that was authorized by the Army Field Manual.” Although she also noted that “sleep deprivation became authorized at Guantánamo by the Secretary of Defense on April 16, 2003, the guidance issued by the Commander of USSOUTHCOM on June 2, 2003 prohibited the use of sleep deprivation for more than ‘four days in succession,’” whereas the supposed witness’s “allegation against al-Rabiah was made after one week of sleep deprivation in the program, and he did not repeat this allegation either before or after the program.”

False confessions obtained through torture

Despite ruling out all of the government’s supposed eyewitnesses, and noting that the government had withdrawn “most of its reliance on these witnesses” by the time of the Merits Hearing, Judge Kollar-Kotelly added that “it is very significant that al-Rabiah’s interrogators apparently believed these allegations at the time they were made, and therefore sought to have al-Rabiah confess to them” — despite the well-chronicled unreliability of the first two supposed witnesses, the withdrawing of the statement made by the third, and the fact, easily perceived by the judge, that the fourth made his statement only after being subjected to sleep deprivation that exceeded established guidelines and that was, therefore, not only unreliable, but also abusive.

The judge also noted the significance of the evidence in the record indicating that al-Rabiah “subsequently confided in interrogators [redacted] that he was being pressured to falsely confess to the allegations discussed above,” and also the significance of the fact that, although “al-Rabiah’s interrogators ultimately extracted confessions from him,” they “never believed his confessions based on the comments they included in their interrogation reports.”

After noting — again with a palpable sense of incredulity — that “These are the confessions that the Government now asks the Court to accept as evidence in this case,” Judge Kollar-Kotelly proceeded to demolish them all, breaking them down into three periods: the first, when “there were no allegations directed toward al-Rabiah and al-Rabiah provided no confessions”; the second, when the supposed eyewitnesses “made their now-discredited allegations and al-Rabiah was told of the allegations against him, but al-Rabiah nevertheless made no confessions”; and the third (which, shockingly, continued “until the present”), when “al-Rabiah confessed to the now-discredited allegations against him, as well as to other ‘evidence’ that interrogators told him they possessed, when, in fact, such evidence did not exist.”

In the first phase, Judge Kollar-Kotelly noted that there was no indication “that interrogators believed al-Rabiah had engaged in any conduct that made him lawfully detainable,” and explained that, “To the contrary, the evidence in the record during this period consists mainly of an assessment made by an intelligence analyst that al-Rabiah should not have been detained.” As discussed in my previous article, this analyst was “a senior CIA intelligence analyst, who, almost uniquely, was also an Arabic expert,” but although I wrote that “it amaze[d] me that no one in the Justice Department, under President Obama, investigated the CIA analyst’s report,” the truth, as revealed in the unclassified ruling, is even bleaker.

It transpires that Justice Department officials had read the report, but tried to discredit the analyst’s verdict, “arguing that it represented the opinion of only one analyst,” ignoring his well-chronicled expertise, and obliging the judge to point out that, “according to the Government’s own evidence, ‘[i]ntelligence analysts undergo rigorous tradecraft training [and] employ specific analytical tools to assist them in sorting and organizing various pieces of information,” and are also “trained to recognize and mitigate biases, not only in the information presented to them, but their own cognitive biases as well.”

In the second phase, despite extensive redactions to the ruling, it is clear that al-Rabiah was repeatedly interrogated, although he “express[ed] frustration to FBI agents that he was repeatedly asked, among other questions, whether he had ever seen Osama bin Laden, and remark[ed] that his answer was ‘no’ and would continue to remain ‘no.’” What happened next, in a “new three-pronged approach,” is unknown, as the details are severely redacted, but it “did not result in any confessions. Al-Rabiah repeatedly denied the allegations against him.”

After this, apparently following some kind of advice given to the lead interrogator (by an unknown party whose identity and suggestions were redacted), the interrogators “began using more aggressive interrogation tactics.” Again, the details are redacted, but enough information is available from passages that were not redacted earlier in the ruling to indicate that these “tactics” included sleep deprivation (the “frequent flier program”), which, as I explained in my previous article, led three British men released in March 2004 — the so-called “Tipton Three,” whose story was dramatized in the film “The Road To Guantánamo” — to explain that al-Rabiah was moved every two hours, over an unspecified period of time (but one that clearly exceeded the four-day recommendation by a substantial margin), leaving him “suffering from serious depression, losing weight in a substantial way, and very stressed because of the constant moves, deprived of sleep and seriously worried about the consequences for his children.”

Possibly in reference to the use of sleep deprivation (although it could also have been another “enhanced interrogation technique”), Judge Kollar-Kotelly explained that, “Once it became authorized, it could not be used on a detainee until ‘the SOUTHCOM Commander ma[de] a determination of “military necessity” and notif[ied] the Secretary [of Defense] in advance’ of its use,” and also made a point of noting that “the Government was unable to produce any evidence that [the interrogator] obtained authorization to use the [redacted] technique with al-Rabiah despite requests by the Court at the Merits Hearing for such evidence.”

Although the other techniques are not described, they undoubtedly included some or all of the following — prolonged isolation, the use of extreme heat and cold, short-shackling in painful stress positions, forced nudity, forced grooming, religious and sexual humiliation, and the use of loud music and noise — because this whole package of techniques, including sleep deprivation, was approved for use at the highest levels of the Bush administration, as a Senate Committee explained in the detailed report in April this year that was cited by the judge (PDF). The program was based on reverse engineering techniques taught in US military schools (the SERE program — Survival, Evasion, Resistance, Escape) to train recruits to resist interrogation if captured by enemy forces.

These techniques were acknowledged to be illegal and, moreover, were intended to produce false confessions, but this did not prevent senior Bush officials from pushing for their implementation, and, in al-Rabiah’s case, they duly led to his conversion from an innocent man who refused to falsely confess to allegations produced by unreliable witnesses into a modern-day version of the victims of the Spanish Inquisition, the seventeenth century “witches” of Salem and elsewhere, the victims of Stalin’s show trials, or the captured US pilots on whom the North Koreans had practiced the techniques adopted by the SERE schools: a broken man prepared not only to falsely confess to any lies put before him, but also prepared to learn these confessions and repeat them as his masters saw fit.

As the ruling makes clear, between redactions, “The following day marked a turning point in al-Rabiah’s interrogations,” and “From that point forward, al-Rabiah confessed to the allegations that interrogators described to him.” Despite the extensive redactions, the following passage from the ruling makes clear the full horror of his confessions:

Al-Rabiah’s confessions all follow the same pattern: Interrogators first explain to al-Rabiah the “evidence” they have in their possession (and that, at the time, they likely believed to be true). Al-Rabiah then requests time to pray (or to think more about the evidence) before making a “full” confession. Finally, after a period of time, al-Rabiah provides a fill confession to the evidence through elaborate and incredible explanations that the interrogators themselves do not believe. This pattern began with his confession that he met with Osama bin Laden, continued with his confession that he undertook a leadership role in Tora Bora, and repeated itself multiple other times with respect to “evidence” that the Government has not even attempted to rely on as reliable or credible.

In the following pages of the ruling, which are again fill of redactions, it is nevertheless possible to glimpse the progress of this game that was not only grim and cynical, but also potentially deadly (because, as a prisoner put forward for a trial by Military Commission, it was always possible that the government would have pressed for the death sentence had al-Rabiah been convicted).

For page after page the distressing truth peeks out: al-Rabiah “did not know what to admit” when his interrogators explained that his “full confession did not incorporate a description concerning a suitcase full of money that he allegedly gave bin Laden”; they “began to question the truthfulness of his confessions almost immediately”; they “began ‘grilling’ al-Rabiah concerning [redacted]”; al-Rabiah “was interrogated [redacted] during which he made a full confession regarding his activities at Tora Bora”; interrogators “pressed for additional details concerning Tora Bora”; they “became increasingly convinced that his confessions [redacted]”; they “concluded in one interrogation report [redacted]”; “One week later, his interrogator concluded [redacted]”; “After several additional interrogation sessions, al-Rabiah’s interrogators concluded simply [redacted].”

Readers can fill in the gaps through the judge’s response to the redacted passages. “Incredibly,” she wrote, “these are the confessions that the Government has asked the Court to accept as truthful in this case.”

Al-Rabiah explains his cooperation with the interrogators; threats and punishment described

Judge Kollar-Kotelly then dismissed further allegations, which again, were mostly redacted but included the following ironic gem: “The Government has not even attempted to explain how someone with no known connection to al-Wafa [a Saudi charity regarded, during Guantánamo’s “witch-hunt” phase, with particular suspicion] and who had never even been to Afghanistan longer than a few weeks could ascend to such an honored position, and no credible explanation is contained in the record.”

She then moved on to al-Rabiah’s own explanations of how he came to make false confessions, noting that he had stated that, shortly after his arrival at Guantánamo, “a senior [redacted] interrogator came to me and said, ‘There is nothing against you. But there is no innocent person here. So, you should confess to something so you can be charged and sentenced and serve your sentence and then go back to your family and country, because you will not leave this place innocent.”

This is deeply disturbing, of course, as it indicates that at least one senior interrogator recognized that the Bush administration’s refusal to recognize that there were innocent men at Guantánamo — and it has been clear for many years that hundreds of innocent men were held, who had no connection whatsoever to any form of militancy, let alone terrorism — had set in motion a system in which, whether voluntarily or not, all the innocent men at Guantánamo were expected to make false confessions, either so that they could continue to be labeled as “enemy combatants” on release, to maintain the illusion that Guantánamo was full of “the worst of the worst,” or, as in al-Rabiah’s case, so that they could be tricked and transformed into terrorist sympathizers and facilitators.

For some (and it has been confirmed by a former interrogator that at least 100 prisoners in Guantánamo were subjected to SERE-derived “enhanced interrogation”), confessions clearly came easily, and without the use of abuse or torture, but for others, including al-Rabiah, “pressure” was involved. Judge Kollar-Kotelly drew on a declaration from March this year, in which he explained that his confessions arose out of “scenarios offered … by [his] interrogators … which [he] believed to be the story they wanted [him] to tell and which [he] felt pressured to adopt” (emphasis added). As he also explained:

[M]y interrogators told me they knew I had met with Osama bin Laden, that other detainees had said I met with Osama bin Laden, that there was nothing wrong with simply meeting Osama bin Laden, and that I should admit meeting him so I could be sent home … In about August 2004, shortly before my CSRT hearing [the tribunal at which al-Rabiah repeated his approved confessions in detail], my interrogators told me the CSRT was just a show that would allow the United States to “save face.” My interrogators told me no one leaves Guantánamo innocent, and told me I would be sent home to Kuwait if I “admitted” some of the false things I had said in my interrogations. The interrogators also told me that I would never go home again if I denied these things, because the United States government would never admit I had been wrongly held.

In a key passage, he spelled out what being “pressured” meant. As the judge explained, he stated that “he made his confessions to reduce the abuse meted out by his interrogators ‘to obtain confessions that suited what [they] thought they knew or what they wanted [him] to say.’ He maintained his confessions over time because ‘the interrogators would continue to abuse me anytime I attempted to repudiate any of these false allegations.’” As she also noted:

There is substantial evidence in the record supporting al-Rabiah’s claims. The record is replete with examples of al-Rabiah’s interrogators emphasizing a stark dichotomy — if he confessed to the allegations against him, his case would be turned over to [redacted] so that he could return to Kuwait; if he did not confess, he would not return to Kuwait, and his life would become increasingly miserable.

Through the veil of redactions, it is clear that al-Rabiah attempted, on more than one occasion, to withdraw his confessions, but that his interrogators threatened to withdraw something (food? comfort items?) as a result, and Judge Kollar-Kotelly also noted that punishment, as well as the threat of punishment, was meted out to him. “The record,” she wrote, “also supports al-Rabiah’s claims that he was punished for recanting.” Examples provided by the judge were redacted, but the following passage, in which she discussed further abuse as a result of the interrogators’ frustrations regarding al-Rabiah’s inability to invent a coherent false narrative, was not. She wrote:

The record contains evidence that al-Rabiah’s interrogators became increasingly frustrated because his confessions contained numerous inconsistencies or implausibilities. As a result, al-Rabiah’s interrogators began using abusive techniques that violated the Army Field Manual and the 1949 Geneva Convention Relative to the Treatment of Prisoners of War. The first of these techniques included threats of rendition to places where al-Rabiah would either be tortured and/or would never be found.

These threats were made on at least four occasions, and, as the judge explained, “were also reinforced by placing al-Rabiah into the frequent flier program,” discussed above. It is also apparent that the threats continued throughout this period, as the judge also noted that “al-Rabiah’s interrogators continued to threaten him [redacted].”

After making a point that, as explained in the Army Field Manual, “prohibited techniques [are] not necessary to gain the cooperation of interrogation sources,” and, in fact, that the use of these methods is likely to “yield unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the interrogator wants to hear,” Judge Kollar-Kotelly added that, “Underscoring the impropriety of these techniques is the fact that [redacted], al-Rabiah’s lead interrogator, was disciplined for making similar threats during the same period toward a Guantánamo detainee who was also one of the alleged eyewitnesses against al-Rabiah … for which he was disciplined” (the details, predictably, were redacted).

Judge Kollar-Kotelly’s devastating conclusions

Judge Kollar-Kotelly added, pointedly, “These abusive techniques did not result in any additional confessions from al-Rabiah, although he continued to parrot his previous confessions with varying degrees of consistency,” and then reached her devastating conclusion:

The Court agrees with the assessment of al-Rabiah’s interrogators, as well as al-Rabiah’s counsel in this case, that al-Rabiah’s confessions are not credible. Even beyond the countless inconsistencies associated with his confessions that interrogators identified throughout his years of detention, the confessions are also entirely incredible. The evidence in the record reflects that, in 2001, al-Rabiah was a 43 year old who was overweight, suffered from health problems, and had no known history of terrorist activities or links to terrorist activities. He had no military experience except for two weeks of compulsory basic training in Kuwait, after which he received a medical exemption. He had never traveled to Afghanistan prior to 2001. Given these facts, it defied logic that in October 2001, after completing a two-week leave form at Kuwait Airlines where he had worked for twenty years, al-Rabiah traveled to Tora Bora and began telling senior al-Qaeda leaders how they should organize their supplies in a six square mile mountain complex that he had never previously seen and that was occupied by people whom he had never met, while at the same time acting as a supply logistician and mediator of disputes that arose among various fighting factions.

It remained only for Judge Kollar-Kotelly to replay some of the more obvious discrepancies in al-Rabiah’s “confessions” to demolish the government’s claims that they should be accepted as “reliable and credible,” and to refute the government’s argument that, “even if al-Rabiah’s confessions in 2003 were the product of abuse or coercion … the taint … would have dissipated” by the time of his CSRT in 2004, when he provided the painstakingly detailed and superficially plausible false confession that was the only publicly available account of his activities until Judge Kollar-Kotelly’s ruling was released.

Taking exception to the government’s argument “for both factual and legal reasons,” the judge took particular note of the role played by al-Rabiah’s lead interrogator, “who extracted al-Rabiah’s confessions and punished his recantations,” noting that he “continued to make ‘appearances’ at al-Rabiah’s interrogations at least as late as [redacted] — after al-Rabiah’s testimony in his CSRT proceedings.” She also explained, “Such ‘appearances’ appear to have been terrifying events for al-Rabiah given the description included in a [redacted] interrogation report” (the details of which were, again, redacted).

On a legal basis, she dismissed the government’s argument by explaining that, although “it is certainly true in the criminal context that coerced confessions do not necessarily render subsequent confessions inadmissible because the coercion can be found to have dissipated,” there needs to be evidence of “a ‘clean break’ between the coercion and the later confessions,” which is simply not available in al-Rabiah’s case. “If anything,” she concluded, “the evidence suggests that there was not a ‘clean break’ between the coercion and his later statements because there is evidence that [redacted] continued to appear at al-Rabiah’s interrogation sessions through at least September 2004” (the date redacted in the paragraph above).

As a final stab at the government, she mentioned a statement made by al-Rabiah in May 2005, and submitted to his first annual Administrative Review Board (the military panels that reviewed the bases for prisoners’ ongoing detention), which had not surfaced until the Merits Hearing, in which al-Rabiah attempted to set the record straight, “recant[ing] all of his previous confessions with the sole exception of one admission that he saw [but did not meet] Osama bin Laden during his July 2001 trip to Afghanistan.”

After dealing with a few more ingenious but flawed claims by the government, it remained only for Judge Kollar-Kotelly to recap the whole sorry saga, and to deliver the final words to restore Fouad al-Rabiah’s liberty:

During the merits Hearing, the Government expressly relied on “Occam’s Razor,” a scientific and philosophic rule suggesting that the simplest of competing explanations is preferred to the more complex … The Government’s simple explanation for the evidence in this case is that al-Rabiah made confessions that the Court should accept as true. The simple response is that the Court does not accept confessions that even the Government’s own interrogators did not believe. The writ of habeas corpus shall issue.

Final words

Judge Kollar-Kotelly’s ruling will, hopefully, be recalled in years to come as one of the most significant examples of a judge attempting to redress some of the most egregious injustices perpetrated in Guantánamo’s long, dark history. The shocking sub-text to this story is that al-Rabiah is not the only prisoner to have been brutalized into making false confessions, and then being required to repeat them. Ahmed al-Darbi, a Saudi put forward for a trial by Military Commission, made similar claims in a statement posted here, and, as I mentioned above, it is also clear that SERE-derived “enhanced interrogation techniques” were applied to at least 100 prisoners in Guantánamo between 2002 and 2004, above and beyond those like Mohammed al-Qahtani and Mohamedou Ould Slahi, whose stories are well-known. Many of these men — all the Europeans, other Arabs who had the misfortune to speak good English or to have visited the United States — have been released, their false confessions (like those made by the “Tipton Three” after months of abuse, before their lawyers proved one of them was working in a shop in England when he was supposedly videotaped at a training camp) filed away, used to justify their lifelong label as “enemy combatants,” but not leading, as with Fouad al-Rabiah, to a court appearance where the supposed evidence will ever be tested.

Al-Rabiah was fortunate to meet a judge with an inquiring and diligent mind, and an acute awareness of the many problems with the gathering and interpretation of information at Guantánamo, but others have not yet had an opportunity to do the same, and although further habeas petitions are forthcoming, and others are scheduled to face either trials by Military Commission or federal court trials, where similar patterns of false allegations followed by torture and false confessions may be detected, it troubles me that the 50 or so prisoners identified by officials last week as being candidates for indefinite detention — described by the New York Times as those who “are a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations” — may also have been caught up in a cynical cycle of false allegations, torture and false confessions.

As David Cynamon, one of Fouad al-Rabiah’s attorneys, explained to me in an email exchange:

To date, the debate about torture in the US has been skewed by the fact that the admitted victims of torture are also admitted al-Qaeda leaders, like Khalid Sheikh Mohammed. This gives the Cheneys and Wall Street Journal types the argument that torture was justified to get valuable information from these hardened terrorists. I know this argument is wrong, but it’s being made, with some effect. But what happens when you declare the Geneva Conventions “quaint,” and lift all limits, is that pretty quickly the abusive interrogation techniques are not being limited to the KSMs but are being applied to innocent prisoners like Fouad al-Rabiah, who have no valuable intelligence because they have no connection with al-Qaeda or the Taliban. Instead, they are tortured in support of a cynical and misguided dictum that there can be no innocent men in Guantánamo.

It is hard to believe that the US could ever have sunk so low. And that the new Administration is keeping us down there. The Obama Department of Justice, with Attorney General Holder piously proclaiming that this Administration repudiates torture, and follows the rule of law, in fact is following the Bush playbook to the letter. In this case, the DoJ defended the abusive and coercive interrogation techniques used against Fouad. Thank God, though, that we have an independent judiciary. The importance of the writ of habeas corpus and independent judges has never been more clear.

Yesterday, I was delighted to take part in “Is Bagram The Other Guantánamo?,” a discussion about the US prison at Bagram airbase in Afghanistan on The Riz Khan Show on al-Jazeera, following a recent announcement by the Obama administration that it is planning to introduce Guantánamo-style tribunals for the 600 or so prisoners held at Bagram. The show is available below in two parts, via YouTube:

As I explained in two articles following the Obama administration’s announcement — “Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions)” and “Is Bagram Obama’s New Secret Prison?” — these proposals are an improvement on the existing review system for the Bagram prisoners, which, disturbingly, consists only of Unlawful Enemy Combatant Review Boards, in which the prisoners have no representation whatsoever, and are only allowed to make a statement before they hear the evidence against them. However, as I also explained in my articles, it’s clear that the decision to introduce a new review system is disturbing for two particular reasons.

The first is that the announcement of the plans for a new review process was cynically planned to persuade an appeals court to overturn a ruling in March by District Court Judge John D. Bates, who granted habeas corpus rights to the rather smaller number of foreign prisoners, held in Bagram for up to six years, who were “rendered “ to the prison from elsewhere, on the correct basis that there is no difference between these prisoners and those transferred to Guantánamo — or, as Judge Bates described it, because “the detainees themselves as well as the rationale for detention are essentially the same.”

The second is that the new proposals fail to acknowledge that prisoners seized in wartime should be held as prisoners of war according to the Geneva Conventions, screened on capture to separate soldiers from civilians caught up in the fog of war, and not held for an undefined amount of time before being subjected to military tribunals, for the simple reason that implementing these policies does not return American to the rule of law, as Obama promised, but instead contributes to the unilateral rewriting of the Geneva Conventions that took place under the Bush administration.

In my discussion with Riz Khan, I was joined by David Rivkin, a Conservative lawyer, for a lively debate about some of the issues involved, in which I was, in particular, delighted to insist, in the face of Mr. Rivkin’s claim that it is acceptable to hold prisoners in “irregular warfare” as “enemy combatants,” that the very concept of an “enemy combatant” is a baleful legacy of the Bush administration’s disdain for the law, and that there are only two acceptable ways of holding prisoners: either as prisoners of war protected by the Geneva Conventions, who can be held until the end of hostilities, or, if they are involved in terrorism, as criminal suspects, who can and should be moved into the federal court system to face trials. Mr. Rivkin was a polite and informed guest, who was stout in his defense of the improvement in the conditions of detention for prisoners since the worst days of the Bush administration, but I found it alarming that he could consider it appropriate to believe that the threat posed by “irregular” soldiers was such that it justified a continuation of the Bush administration’s policies.

I was also pleased to have the opportunity to debunk Mr. Rivkin’s claim that federal courts are unable to deal with cases arising out of “irregular warfare” and that, because of the complexities of intelligence-gathering, they are bound to end up with judges approving the release of prisoners in the cases that come before them, because, as has been demonstrated in a compelling manner in the habeas corpus petitions of the Guantánamo prisoners who have had their cases objectively reviewed by District Court judges, the reason that these cases fail is not because of any difficulties in presenting the evidence, but because, in most cases, no evidence exists (for further details, see here, here, here and here).

Instead, what is presented as evidence by the government is mostly nothing more than groundless allegations made by other prisoners whose unreliability has been acknowledged by the military and the intelligence agencies (and who were either coerced or bribed, or who suffer from mental health problems), “mosaics” of intelligence that do not stand up to independent scrutiny, and, in the most recent case — of Fouad al-Rabiah, a Kuwaiti prisoner — the shocking truth that, following false allegations made by other prisoners, interrogators subjected him to an array of abusive “enhanced interrogation techniques” — or, in other words, to techniques that may well meet the legal definition of torture — until he falsely confessed that he had met Osama bin Laden and was involved with al-Qaeda.

Note: A detailed article on Fouad al-Rabiah’s habeas corpus ruling will be available soon, but for now please see my first response, which was based only on the publicly available information at the time of the ruling, and which did not indicate the extent of his false confessions.

Last Monday, when Khalid Sheikh Mohammed and his four co-defendants in the long-delayed 9/11 trial at Guantánamo were scheduled to make an appearance before their Military Commission judge, Army Col. Stephen Henley, to discuss some procedural arrangements and the ongoing dispute about the mental health of one of the men, Ramzi bin al-Shibh, the naval base’s airport was busy, as reporters, observers and relatives of the 9/11 victims were flown in to witness what some parts of the military clearly still regard as a viable trial system.

In the end, the whole event was a disappointment, as Col. Henley agreed to a request from the government to freeze the trial proceedings for another 60 days (on top of the two 120-day freezes to date), to allow time for the administration to work out whether it can persuade the House of Representatives to approve proposed changes to the much-criticized trial system, or whether to proceed with federal court trials instead (and I explained why the latter is the only viable option in an article entitled, “9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please?”).

As a result, none of the defendants showed up in court on Monday, and the authorities were obliged to temper their disappointment by releasing a statement from the men the following day, which was clearly intended to provide another piece of evidence for the prosecution in the absence of any actual proceedings.

A statement by Khalid Sheikh Mohammed and his co-defendants

In a letter submitted to the judge acknowledging that they had no objections to the government’s proposed 60-day delay, Mohammed and two of his co-defendants, Walid Bin Attash, and Ali Abdul Aziz Ali, sent greetings to Osama bin Laden, Ayman al-Zawahiri and Mullah Omar, and took the opportunity to refer triumphantly to the 9/11 attacks. “We send our greeting to them on the occasion of the anniversary of eight years past on the most noble victory known to history over the forces of oppression and tyranny in the Washington and Manhattan attack,” they wrote.

As the Associated Press described it, they also quoted from the Koran to explain their continuing desire to represent themselves, but to offer no defense to the charges against them. ”I put my trust in Allah,” they wrote, “So devise your plot … Then pass your sentence on me and give me no respite.” The men also — as is Mohammed’s habit — took the opportunity to refer to the torture to which they were subjected in secret CIA custody, before their transfer to Guantánamo in September 2006, and also criticized President Obama. “We spent three years moving around the black sites in the ‘dark ages’ of Bush, then we were transferred to the island of oppression, torture and terror, Guantánamo,” they wrote, adding, “Then, the lying Barack, the new American president was elected, and we entered the black ages of Barack.”

Afterwards, few reporters and observers stuck around for the rest of the week’s events, even though pre-trial hearings were also scheduled for two other Military Commission cases: of Ahmed al-Darbi, a Saudi, seized on arrival in Azerbaijan in June 2002 and “rendered” to US custody in Afghanistan two months later, who is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, and Mohammed Kamin, an Afghan accused of training at “an al-Qaeda camp” and taking part in the insurgency against US forces. Two who did were Carol Rosenberg of the Miami Herald and Jane Sutton of Reuters, and I’m grateful to them for staying and capturing some disturbing allegations about the Commissions that might otherwise have gone unnoticed.

Ahmed al-Darbi’s torture allegations

In al-Darbi’s pre-trial hearing last Wednesday, the judge, Army Col. James Pohl, also decided to abide by the President’s request for another stay in the Commission proceedings, but not until al-Darbi’s lawyer, Ramzi Kassem, had raised some uncomfortable questions about his client’s treatment in US custody. According to the Commissions’ rules, evidence derived through the use of torture is banned, but individual judges may use their discretion to accept evidence obtained through coercion. The demarcation line is clearly a gray area, as was demonstrated on Wednesday, when Col. Pohl refused to abandon al-Darbi’s proposed trial, setting a date of January 11, 2010 (the eighth anniversary of the opening of Guantánamo) for a further hearing to decide which of the 119 statements made by al-Darbi to interrogators would be accepted as evidence.

This was in spite of protestations by Kassim that all the statements were tainted by the use of torture, because, as Carol Rosenberg described it, they were obtained “through beatings, threats of rape, sleep and sensory deprivation, and sexual humiliation,” at the US prison at Bagram airbase in Afghanistan (where al-Darbi was held for eight months) and also at Guantánamo.

Given the gravity of these allegations (explained in greater detail in a statement by al-Darbi that I’ve reproduced here, and which is well worth reading in its entirety), it was unsurprising that, following Col. Pohl’s ruling, Ramzi Kassem explained to reporters, “Either the Obama administration is duplicitously saying one thing to the public and the media and doing another here or, you know, Guantánamo and the military commissions are like a headless chicken that just keeps on moving after it’s been decapitated.”

Kassem also read out a statement prepared by al-Darbi, explaining that his client had “planned to read his statement in court but felt there wasn’t an opportunity during the brief hearing.” In the statement, al-Darbi, who, as the Associated Press described it, had held up a photo of Barack Obama “as a sign of hope” at a pre-trial hearing last December, and had stated that he hoped Obama would “earn back the legitimacy the United States has lost in the eyes of the world,” revised his opinion.

Although the statement was addressed to “his excellency, the American President Barack Obama, whose photo I held up in this place as though I had voted for him,” al-Darbi criticized Obama for “issuing certain orders and decisions” regarding the Military Commissions, telling the President that “he has gone astray.” He also criticized the government for holding a hearing during the post-Ramadan holiday of Eid, and also referred to Obama’s speech in Cairo in June, which was intended to build bridges with the countries of the Middle East. “I can tell you that the ugliness of this place and its continuing existence … have all covered up the beautiful smile that the American president directed at you,” al-Darbi wrote, directing his comments at Muslims who had watched the President’s speech in Egypt.

The futility of prosecuting Mohammed Kamin

If the case of Ahmed al-Darbi raises uncomfortable questions about the distinctions between coercion and torture, the case of Mohammed Kamin is simply inexplicable. As I explained in an article last March, when he was first charged, Kamin seems to be “an unworthy candidate for any kind of war crimes trial at all.” I continued:

In his charge sheet (PDF), he is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let along killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all. As it is, I’m prepared to state that his case seems to me to demonstrate how hopelessly blurred the distinctions between military resistance (aka insurgency) and terrorism have become, so that anyone caught fighting US occupation is not engaged in a war (with its own well-established laws) but is automatically part of a global terrorist movement.

At the time, the Bush administration was unconcerned that providing material support for terrorism was not a recognized war crime, but whereas Ahmed al-Darbi is charged with both conspiracy and material support for terrorism, Mohammed Kamin faces nothing but a material support charge, and the Obama administration, to its credit, has already accepted, in its plans to review the Military Commissions Act in Congress, that the charge of material support for terrorism should be dropped. Assistant Attorney General David Kris conceded, in Congressional testimony in July, that there is a “significant risk” that, on appeal, judges would not regard it as a legitimate war crime, and the Justice Department’s position is also held by the Pentagon, where General Counsel Jeh Johnson also accepted in July that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

As a result, although the Commissions definitely seem to be proceeding like a “headless chicken” in Kamin’s case, his lawyers asked the judge to schedule a meeting with Jeh Johnson, and are hopeful that they will be able to persuade him to accept that it would be absurd to proceed with his proposed trial. In a detailed submission (PDF), they noted that, as recently as September 10, Johnson told a national security panel of American Bar Association lawyers that, although material support for terrorism was included in the Senate’s bill for amending the Commission, “We don’t believe that material support is a law of war offense. That’s still our position.”

The situation is further complicated because Susan Crawford, the Commissions’ Convening Authority (and a close friend of both Dick Cheney and David Addington), whose conflicted role overseeing the Commissions I have written about at length (here, here and most recently here), responded in July to a request from Kamin’s lawyers to withdraw or dismiss the charges by noting that Johnson had only stated that “appellate courts may find that material support for terrorism is not a traditional violation of the law of war” (emphasis added), and that, at present, it remained a viable charge under the MCA.

Despite Crawford’s insistence that, in the trial of Salim Hamdan, the judge ruled that “the conduct embraced within the specification [of material support] included conduct which the United States has considered a violation of the law of war since at least the Civil War,” I’m reasonably optimistic that neither Crawford nor the Congress will prevail in their arguments. Even so, it remains disgraceful that Mohammed Kamin is still waiting for justice, nearly six and a half years since his capture, and, more worryingly, that Ahmed al-Darbi, who, unlike Kamin, is clearly regarded as a significant prisoner, is still no closer than he was six and a half years ago to establishing whether he will ever be allowed to address, in a fair and open hearing, his claims that he was tortured in Bagram and Guantánamo.

The following statement, made by Guantánamo prisoner Ahmed al-Darbi on July 1, 2009, was originally posted by the U.C. Davis Center for the Study of Human Rights in the Americas, a University of California research project, coordinated by Almerindo Ojeda, which is well worth visiting. I’m posting it here to accompany my article, “Torture And Futility: Is This The End Of The Military Commissions At Guantánamo?”

Declaration of Ahmed Al Darbi, July 1, 2009

Pursuant to 28 U.S.C. § 1746, I certify that the following is true and correct to the best of my knowledge:

INTRODUCTION

1. My name is Ahmed Mohammed Ahmed Al Darbi.

2. I am a Saudi national who has been imprisoned at the U.S. Naval Station at Guantánamo Bay, Cuba (“Guantánamo”) for nearly six years. The U.S. military has assigned me Internment Serial Number (“ISN”) 768 at Guantánamo.

3. In June 2002, I traveled by air from Dubai, United Arab Emirates to Baku, Azerbaijan. While I was at customs in the Baku airport, waiting to be processed for entry, I was taken into custody by local Azerbaijani authorities. I did not know why Azerbaijani authorities apprehended me and I had no reason to know that they would. I was held in Azerbaijani custody for about two months.

4. In August 2002, the Azerbaijani authorities turned me over to U.S. agents. These agents [REDACTED]. They then blindfolded me, wrapped their arms around my neck in a way that strangled me, and cursed at me. [REDACTED], and somebody else kept saying, “fuck you” in my ear. I was terrified and feared for my life, because I did not know who had seized me, which government’s custody I was in, or where they were taking me. They did not tell me where we were going.

5. I was eventually taken to a place that I now know was Bagram Air Force Base in Afghanistan (“Bagram”). I was imprisoned at Bagram for about eight months. At Bagram, my detainee number was 264.

6. In late March 2003, I was transferred to Guantánamo.

BAGRAM

Treatment and interrogations during the first two weeks at Bagram

7. During about the first two weeks at Bagram, I was kept in complete isolation, and I did not even know I was in Afghanistan.

8. U.S. agents began interrogating me on my second day at Bagram. These interrogations took place in a room different from the isolation cell where I was held the rest of the time.

9. While I was questioned, I was kept for many hours in painful positions. For example, I would be forced to kneel with my hands cuffed above my head, often through the night, so that I was not allowed to sleep. This position caused very sharp pain in my knee-caps. If my hands began to fall or I tried to stretch to relieve the pain in my back while I knelt, the interrogators kicked me in the back.

10. Sometimes I was also forced to lean against a wall with my forehead pressing against the wall and my hands shackled behind my back, but with my feet away from the wall. In this position, all my weight rested on my forehead. I had to hold this position for hours. This hurt my head and neck. It was impossible to sleep in this position.

11. I was often hooded during these interrogations. The hood they used had a sort of rope or drawstring that they would pull tight around my neck. The darkness, combined with little sleep, would leave me disoriented.

12. During these interrogations, they would ask me repeatedly about Osama Bin Laden and his whereabouts. Of course, I knew nothing about this.

13. When I was not being interrogated in an interrogation room, I was put in an isolation cell where the temperature was high and the light was kept brightly lit most of the time. Often they also would blast loud music into my cell.

14. During these first two weeks, I hardly slept at all. I was purposely kept awake much of the time, and it seemed that every time I started to fall asleep, they would hit me to keep me awake. Also, during that period, I was not allowed to pray.

15. I was not allowed to use a normal restroom during this time. Instead, [REDACTED]. The only thing that helped this problem was that I often did not eat much. I was not given much food at the time and the food they did give me was inedible, so I didn’t have very much in my stomach. Due to the constant strain and stress this situation placed on me, [REDACTED].

16. The U.S. military guards and interrogators also took many photographs of me that humiliated me. [REDACTED] and take off my hood so that I could see what was going on, and so that I would be recognizable. There would be several U.S. agents, male and female, standing around when these photographs were taken.

17. After approximately the first two weeks, I was taken out of isolation. I was moved to a cage attached to a holding pen for other prisoners. This was a small cage surrounded by fencing and razor wire. The cages doubled as a passageway for the guards between the general holding pens and a public area or walkway in front of the cages. From what I remember, there were six holding pens in total, and each one connected to a cage that was used to isolate and suspend detainees by the arms. There were signs outside the holding pens displaying the names New York, Pennsylvania and Nairobi, which I understood to be the sites of different terrorist attacks after one of the guards, in a state of agitation and rage, once shouted at me, “your brothers did this!” as he pushed me from behind.

18. I was hooded or goggled for much of this time. I recall that there was a whiteboard outside of the cage, where the numbers assigned to me and other detainees were recorded in red, green and blue. Next to the numbers were symbols indicating what techniques were to be used on us. Next to the whiteboard was another board, where they hung baseball bats, chains, cuffs, hoods, and other instruments guards would use on the prisoners at Bagram.

19. Much of the time I was in this cage, U.S. military personnel shackled my hands above my head to the upper part of the cage’s door, so that I would swing with the gate as it opened and shut. Sometimes, military personnel would cuff my hands to the gate outstretched in different directions so that my back would be twisted, almost horizontal. This was very painful. Frequently, U.S. personnel beat me while I was hanging in the cage.

20. Occasionally, the guards would unlock the cuffs and tell me I could sleep. To me it felt like they only allowed me to sleep once or twice a week, but I do not know for certain. I do know that I was very sleep-deprived at this time. After what felt like a short time of sleep to me, the guards would wake me abruptly by rushing in as a group, shouting loudly, and they would then hang me from the top of the cage’s gate by my wrists again.

21. I had to insist to be allowed to use the restroom. The guards and interrogators would not always release me, and I often could not relieve myself because of how long I had gone without relieving myself, which caused me sharp pains. When I was allowed to use the restroom, I had to remain completely shackled.

Interrogations during the next three months at Bagram

22. After the first two weeks, approximately, for about the next three months at Bagram, the interrogations that began on my second day at Bagram continued and became more abusive. U.S. personnel would play blaring music, shine bright lights in my eyes, kick me, and drag me around the room. Some kneed me in the chest, stomach and genitals and threw me against the wall. I was often thrown to the ground and then pulled around the room by my handcuffs.

23. Other times a sand bag or hood was placed over my head and tightened around my neck, and then they would grab my head and shake it violently while swearing at me and they would also pour water over my head while my head was covered. Also, I was sometimes forced to hold a chair over my head for a long period of time during interrogations.

24. On several occasions, the U.S. agents sprayed water on my face and then blew a powder that I think was pepper onto me. The water absorbed the powder and it burned my skin and made my nose run. At other times hairs were ripped from my chest and my head by the U.S. agents. Other times agents blew cigarette smoke in my face and they would also throw their cigarette butts at me along with the full contents of the trash can.

25. Sometimes, during interrogations, U.S. personnel would throw me to the ground and make me lie on my stomach, with my arms outstretched above my head. I remember that a U.S. military guard or interrogator by the name of Damien Corsetti was often present during my interrogations. Corsetti was a big, heavy man and he had a tattoo of the Virgin Mary on his left arm. He sometimes stepped on my handcuffs while I was lying on the floor with my arms above my head. This caused my handcuffs to tighten painfully around my wrists. These particular handcuffs were not of the “double-lock” sort that could not be tightened past a given point.

26. There are a few incidents that occurred only once but that I remember very well because they were so shocking to me. During one interrogation, a U.S. agent that I recall was Corsetti kneeled on my chest. Corsetti was a big, heavy man. He put his knees on my chest and pressed down on me with all his weight. I couldn’t breathe, and he stayed on me for so long that I thought I was going to die. Another guard or interrogator pulled him off me because I stopped breathing.

27. Another time, about a month after my transfer to Bagram, I was suspended in the cage, and a guard or interrogator called me [REDACTED]. There was a U.S. military guard in the cage who pressed his finger hard into the soft flesh under my jaw. I started to choke, and afterwards the area swelled badly.

28. There are other things that happened to me during these interrogations that I do not wish to describe in a document that might become public. I do not want my family to know the details about what happened to me [REDACTED].

29. [REDACTED]. The U.S. agents also threatened to send me to Israeli, Egyptian, or Afghan jails for torture and rape.

30. [REDACTED].

31. [REDACTED].

32. [REDACTED].

33. [REDACTED].

34. [REDACTED].

35. These are only some of the humiliating things that were done to me. I was frightened, and there were times I wished I would die. I felt that anything could happen to me and that everything was out of control. During this time the interrogators took my “confessions,” pressuring me into making false statements about myself and others.

36. The military guards and interrogators would show me pictures of people, and told me I must identify them and confess things about them. After they tortured me, I would say what they wanted me to say. I was fed detailed statements and names of individuals to whom I was to attribute certain activities.

37. The military guards and interrogators told me that I had to repeat these same statements to other interrogators, and threatened to continue abusing me — or to make it even worse — if I did not cooperate. I found out that these “other interrogators” were FBI interrogators, because they identified themselves. After I had been interrogated and tortured by the military guards and interrogators, they would let the FBI interrogators into the room. The FBI interrogators would interrogate me without the military guards and interrogators. They would ask for the same details that I had discussed with the military interrogators and guards. I tried to repeat the same statements, because I was afraid of the threats made by the military guards and interrogators. I never signed anything at Bagram.

38. I remember that I usually spoke to the same three FBI interrogators. They identified themselves as “Tom,” “Jerry,” and there was third one whose name I cannot remember, but those were not their real names anyway. Tom was tall, Jerry was short; both were young, white males.

39. I do not think the FBI interrogators were present during the interrogations by the U.S. military interrogators or guards, or when the torture was happening. Also, I do not think the military guards and interrogators were present during the interrogations by the FBI. But the military interrogators continued to abuse me during the time I was being interrogated by the FBI — even though I did what the military guards and interrogators told me to do and tried to repeat statements the military guards and interrogators had fed me to the FBI.

40. Eventually, the FBI interrogators stopped questioning me. I was then moved to the communal holding pen with the other prisoners.

Hard labor at Bagram

41. I also was forced to perform degrading, hard labor at Bagram, in full view of the other detainees and the guards.

42. Many mornings I had to replace the full port-a-potty buckets with empty buckets. I had to do this in front of everybody. [REDACTED]. Once, when I complained that I could not change the port-a-potty while shackled, a guard punched me in the side, and kept hitting me even after I was on the floor. Other U.S. military personnel came over and one of them choked me while the other punched me in the kidneys and ribs.

43. Often I was forced to sweep the floor in the public, walkway area. Once, I was forced to scrub the entire floor using only a toothbrush [REDACTED].

44. I was also forced to carry boxes filled with water bottles while my hands were cuffed together. I could carry two boxes but the guards often tried to make me carry as many as four, and would hit me when I struggled. This labor caused me sciatic pain and back pain for several years.

Witnessing the abuse of Dilawar

45. When I was in the communal holding pen, an Afghan prisoner by the name of Dilawar was shackled in a hanging position in the cage adjacent to my pen. I remember that this was the same cage where I had been suspended.

46. I recall that Dilawar had been hanging hooded for about two days and was screaming and moaning. A U.S. guard told Dilawar that he would release him if he would clean the floor. I spoke a little Pashto and some English, so the guard ordered me to translate this instruction for Dilawar. I was then ordered to clean the floor with him. After we were done, the guard chained Dilawar to the top of the cage once more. Dilawar started screaming again.

47. Then the next shift of guards came on. They ordered Dilawar to stop screaming. They then brought a shorter chain and used it to suspend him wholly off the floor by his wrists. Dilawar moved his body only slightly and that is when the guards began beating him.

48. At first two guards were beating Dilawar, kneeing him in the legs and punching him in the chest as he was suspended in the cage. They then moved him to the walkway area, outside the cage, and several guards beat him. By this point, Dilawar had stopped moving or crying. I witnessed this entire event.

49. Dilawar was then moved somewhere out of my sight. Days later, I heard Dilawar had died. This made me fearful that I would meet the same fate.

GUANTÁNAMO

50. On or about March 23, 2003, I was moved to Guantánamo. Once there, I was kept in solitary confinement for two months. I was held in Camp Delta, Camp 2, Oscar Block.

51. Painfully loud music was often played in my cell. Sometimes they played a repetitive song composed of what sounded like a cat’s meow. It was very hard to sleep because the cells were chilled to extremely cold temperatures, and there was extremely bright lighting and also the loud music.

52. Sometimes, U.S. personnel would throw my Koran to the ground, and they would scatter gruesome photos of bloodied and mutilated bodies on the ground.

Interrogations at Guantánamo

53. I remember that I was interrogated every day for what seemed like five to six hours, and sometimes also at night, from the middle of the night until dawn. The interrogation rooms stank of urine.

54. During the interrogations, they did not let me go to the restroom to relieve myself, [REDACTED].

55. The interrogations at Guantánamo were conducted mostly by the FBI interrogators. Tom, the FBI interrogator who had questioned me at Bagram, was the first who interrogated me in Guantánamo, as I recall. I remember that he told me that if I did not stick with my Bagram confessions, I would not “escape Bagram.” I was told that if I did not cooperate, I would be sentenced to death and executed, or that I would be tortured, raped, and sexually abused in either Camp X-Ray at Guantánamo, or sent back to Bagram or to other countries.

56. Shortly after I arrived at Guantánamo, Tom asked me to sign a written statement but I refused to sign the statement.

57. In or about April or May 2003, while I was still in solitary confinement, the FBI interrogators again told me to sign a written statement. Tom told me that prison authorities could send me to Camp X-Ray where horrible things could happen to me or send me to another country, such as Egypt or Israel, where people would make me sign the statement. I was scared that the abuse I suffered at Bagram would be renewed at Guantánamo or elsewhere, or that I might be sent back to Bagram.

58. The interrogators at Bagram and Guantánamo fed me particular details in my statements and forced me to identify individuals based on photographs or to ascribe to those individuals certain conduct. Although I never signed any written statements, I made numerous false statements to the interrogators at Bagram and Guantánamo because of the abuse and coercion I suffered.

CONTINUING EFFECTS OF TORTURE

59. To this day, I frequently feel anxious, depressed and worried. I feel not quite right, not quite like myself. I have recurring nightmares of the U.S. guards and interrogators from Bagram chasing me. Whenever anybody wakes me, I wake up screaming in shock and panic. I have headaches. I feel that I am emotionally unstable, and I know that I go through personality changes and mood swings, which were not typical for me before I came into U.S. custody. Sometimes I lose physical control.

60. I feel that I need mental health counseling, but I do not feel comfortable talking with the mental health or medical personnel here at Guantánamo. They have been complicit in the torture: I have seen and heard that they put patients in garments that leave them practically nude, that they forcibly medicate patients, and that they prescribe addictive drugs to patients so that interrogators can manipulate those men during interrogations. I would prefer an independent mental health expert identified by my attorney and defense counsel, Ramzi Kassem.

RETURNING TO SAUDI ARABIA

61. If I am released, I would like to go home to Saudi Arabia and move on with my life. I want to put this chapter behind me, find work, and take care of my wife and two children. My daughter is nine years old now and my son is seven. I have never met my son. I have already missed many years of their lives. Also, my parents are elderly and I have heard that my father is sick. I would like to join my brothers and sisters in taking care of them in their old days.

62. Of course, I am willing to participate in the Saudi reintegration program for repatriated detainees and abide by its rules and conditions upon my return home.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

On Sunday, following the revelation of the identity of one of two Uzbeks released from Guantánamo to take up a new life in the Republic of Ireland, I published a letter from Guantánamo written by this man, Oybek Jabbarov, and also included a statement by his lawyer, Michael J. Mone Jr., to a Committee of the US House of Representatives, in which Mone explained that Jabbarov was a refugee, living in northern Afghanistan with his pregnant wife, infant son, elderly mother and other Uzbek refugees at the time of the US-led invasion in October 2001, and that he ended up in US hands “after he accepted a ride from a group of Northern Alliance soldiers he met at a roadside teahouse who said they would give him a ride to Mazar-e-Sharif. Unfortunately, instead of driving him to Mazar-e-Sharif, the soldiers took Oybek to Bagram Air Base where they handed him over to US forces, undoubtedly in exchange for a sizeable bounty.”

Yesterday, the Irish Times revealed the identity of the second man, and although I respect his desire for privacy, and the chance to begin rebuilding his life after his long ordeal, as much as I recognize Oybek Jabbarov’s right to the same courtesies, I believe that, as with his countryman, it is useful to point out what is known of his story, as it is yet another example of an innocent man losing nearly eight years of his life in a cruel and experimental prison designed to hold human beings without any rights whatsoever.

As I explained in my article on Oybek Jabbarov, men like these two Uzbeks, just two of the many hundreds of innocent men who have been held in Guantánamo over the last seven years and nine months, were “mostly seized by the Americans’ opportunistic allies at a time when bounty payments for ‘al-Qaeda and Taliban suspects’ were widespread, and were then presumed guilty without any screening process by an administration drunk on its own exercise of unfettered executive power.”

The story of Shakhrukh Hamiduva

Unlike Oybek Jabbarov, whose lawyer fought tenaciously to establish his client’s innocence, and actively courted the media, Shakhrukh Hamiduva, the other man freed in Ireland, did not register on the media’s radar during his detention, although I mentioned him in my book The Guantánamo Files. Nevertheless, his story — as accepted by a military review board that cleared him for release from Guantánamo in 2006 — bears striking similarities to that of his fellow countryman: a vulnerable refugee, preyed upon by unscrupulous Afghans following the US-led invasion, when substantial bounty payments were on offer for foreigners who could be presented to gullible US forces as “al-Qaeda or Taliban suspects.”

All that is known publicly of Shakhrukh Hamiduva is that he was born in Kokand, Uzbekistan in December 1983 (and that he was, therefore, probably under 18 years of age at the time of his capture), that he was one of the first prisoners to arrive at Guantánamo in January 2002, and that he gave the following account in December 2004 to his Combatant Status Review Tribunal (the one-sided military boards established to review — and largely endorse — the administration’s contention that everyone who had ended up in US custody was an “enemy combatant” who could be held without rights).

In his tribunal, Hamiduva explained that he left Uzbekistan because of religious persecution, and added that his father and five uncles had been jailed, and that another uncle had been killed. Nevertheless, he had to contend with a number of allegations whose provenance was not disclosed, but which were almost certainly produced as a result of the interrogations of other prisoners (or of Hamiduva himself), in circumstances that may well have involved coercion or bribery. One allegation was that he had spent a year and a half in a training camp run by the Islamic Movement of Tajikistan, but he explained that he had spent that time at a refugee camp, which contained around 300 refugees. He also denied an allegation that he “willingly became a soldier in the Mujahideen Army,” and that he traveled to Afghanistan to “participate in jihad against the Russians and the Northern Alliance.”

In a statement provided to his Personal Representative (a military officer assigned to the prisoners for the tribunals instead of a lawyer), he explained that he had initially wanted to go to Turkey, but that he couldn’t get a passport because he was too young, so he decided to work with the Tajik authorities at the refugee camp instead. This, he said, involved helping the refugees, and he added that the Tajik government then provided transportation to take him and other refugees to Afghanistan (actually deporting them, as they did with hundreds of Uzbek refugees in 1999, including Oybek Jabbarov and his family), where he helped some of them “to fix up things like cars or roofs” at a place in Kabul. He also explained that, after five or six months, he hooked up with an Afghan “mentor,” who owned a garage and taught him to drive, and added that, after working for him for a while, he bought a car and started to work as a taxi driver, which was his occupation when he was captured.

Speaking of his capture, he said that he went to the United Nations in Pakistan (as there was no office in Afghanistan) to get help in returning to Uzbekistan. “They promised me they would be able to help me and send me back to my homeland, but nothing would happen to me and that I would be protected,” he said. “He [a UN official, presumably] gave me a piece of paper. I guess it was some kind of travel document so I would be able to travel along with.”

He explained that, after this visit, he returned to Afghanistan in his car with five or six Afghans from Mazar-e-Sharif, and added that he didn’t want any money from them; he just wanted them to give him directions. However, in the mountains he was stopped by armed Afghans who let his passengers go, but who took his car and handed him over to “the American general” — probably General Rashid Dostum, the Afghan Uzbek warlord who was working with US forces — at Mazar-e-Sharif.

He also explained to the tribunal that he told the Americans his story, and added that they saw his travel document and promised him that they would help him get home, but, after keeping him imprisoned for a month “in some kind of house” with about 15 Pakistanis, they were all transferred to the US prison in Kandahar, and after about a month and a half he was sent to Guantánamo.

Speaking of the nearly three years he had spent in the prison by the time of his CSRT, he told his tribunal, “They said that they were through with me and promise[d] to send me back to my homeland, that’s why I’m confused. When they brought me here for interrogation, I didn’t want to talk a lot to them … They didn’t treat me well here, that is why I didn’t tell them anything.” He added, “I just want to let you know that they torture me a lot here at the camp. They would not let me sleep through the night; they were tak[ing] me to interrogations. I saw them beating other detainees, breaking their arms and legs.”

When the tribunal asked why he was wearing orange (which meant he was uncooperative, as, by 2004, white uniforms had been introduced for “cooperative” prisoners, and tan for those who were somewhere in between), he explained, “I know that there are four levels of discipline. Every time I try to go one level up, they will do something to keep you in the level. I know that there are a lot of detainees who don’t want to talk to the interrogators and no matter what you tell them they are not going to change your level or change your clothes for that matter. I know that a lot of people have been tortured here at the camp … When I don’t exercise I feel very weak, that [is] why I try to exercise inside my cell but MPs don’t like it. That is the only [way] I can keep myself healthy here is by doing some exercise because when you get sick you don’t get any appointments here so what should I do? Every prison detainee should be allowed to exercise; I don’t understand why they don’t allow us.”

As with the story of Oybek Jabbarov, this is a disturbing account on a number of levels. With such limited information available, I have no idea if Shakhrukh Hamiduva, like Jabbarov, was threatened by Uzbek intelligence agents who were allowed to visit Guantánamo (although it seems likely), but enough information is readily available to demonstrate, yet again, that the phrase “the worst of the worst,” as used by senior Bush administration officials to refer to the supposed terrorists in Guantánamo, is more accurately applied to the kind of mistakes made by the administration, which in its myopic arrogance, was more than happy to detain randomly seized foreigners in Afghanistan, and to deprive them of any rights, even if they were under 18 years old, and should, as juveniles, have been rehabilitated rather than being subjected to sleep deprivation, punished for trying to exercise in their cells, and forced to watch as other prisoners were beaten until they were hospitalized.

Last Wednesday, Obama administration officials told the Washington Post, as Peter Finn described it, that the administration “has decided not to seek legislation to establish a new system of preventive detention to hold terrorism suspects.”

In some ways, of course, this is a relief. In May, in a major speech on national security, when President Obama first proposed working with Congress to introduce new legislation to authorize the “preventive detention” of prisoners at Guantánamo, lawyers, human rights advocates and others — including myself — were appalled.

For this category of prisoners — described in the Post on Thursday as those “who cannot be prosecuted for past crimes but who are too dangerous to release,” in the New York Times as those who “are a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations,” and by Obama, in May, as those who “cannot be prosecuted yet who pose a clear danger to the American people” — President Obama knew he was on thin ice in May.

In his speech at the time, he insisted that any new system would have to involve “judicial and congressional oversight,” and stated, “We must have clear, defensible and lawful standards for those who fall into this category. We must have fair procedures so that we don’t make mistakes. We must have a thorough process of periodic review so that any prolonged detention is carefully evaluated and justified … And so, going forward, my administration will work with Congress to develop an appropriate legal regime.”

In a comment intended to cast the President’s comments in May in a new light, officials explained to the Times on Wednesday that “working with Congress did not mean the president would seek legislation, only that he would consult lawmakers.”

While this may not have been entirely convincing, there is no doubting that what the Times described as the administration’s “evolving arguments” regarding the eventual fate of the remaining 223 prisoners are, little by little, bringing Obama in line with what many of his supporters expected him to do on arrival in the White House.

In dropping plans for new legislation, for example, the administration has realized that it can continue to hold prisoners based on the Authorization for Use of Military Force, the Congressional resolution passed the week after the 9/11 attacks, which authorizes the President “to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible” for the attacks.

This is by no means perfect, of course. As the Times noted, “In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies,” although it added, accurately, that the President’s advisers “are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress.” As the Justice Department explained in a statement on Wednesday evening, the administration will “rely on authority already provided by Congress” under the AUMF, and “is not currently seeking additional authorization.”

Responding to this development, Christopher Anders, senior legislative counsel at the ACLU, told the Post, “This is very welcome news and very big news,” and explained succinctly why new legislation would have been a disaster. “Going to Congress with new detention authority legislation would only have made a bad situation worse,” he said. “It likely would have triggered a chaotic debate that would have been beyond the ability of the White House to control — and would have put US detention policy even further outside the rule of law.”

This is certainly true, but huge problems nevertheless remain with the government’s new position, of which the following two are perhaps the most significant. The first concerns doubts that the AUMF’s failure to distinguish between al-Qaeda and the Taliban can be sustained for much longer. In March, when the government first explained that it had dropped some of the Bush administration’s more excessive claims about the exercise of unfettered executive power, but that it would continue to hold prisoners in accordance with the AUMF, I explained that it was becoming increasingly obvious that there was, in fact, a major distinction between al-Qaeda (a terrorist group) and the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001), and that the continuing failure to make this distinction was ensuring that, essentially, low-level Taliban foot soldiers, who had been in Afghanistan fighting an inter-Muslim civil war before the 9/11 attacks, had suddenly become “terrorists” when the invasion of Afghanistan began.

Last month, I had cause to reiterate this complaint, when a judge ruled that a Kuwaiti prisoner, Fawzi al-Odah, could continue to be held indefinitely because “the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.”

More importantly, however, although the AUMF may legally provide an excuse for continuing to hold people without trial who, as Obama stated in May, might include “people who have received extensive explosives training at al Qaeda training camps, commanded Taliban troops in battle, expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans,” there is, in fact, no justification whatsoever for holding prisoners indefinitely without trial.

The very basis of the judicial system in the United States and in every other country that dares to call itself civilized depends upon either capturing people and putting them on trial, or releasing them due to a lack of evidence. The only other option — holding people as prisoners of war, protected by the Geneva Conventions, who can be detained until the end of hostilities — is one that, in its confusion of criminals with soldiers, and its inability to deal honestly with either category of prisoner, the Bush administration did away with completely, and which, to his growing shame, President Obama seems to find himself unable to reintroduce, as was recently demonstrated by some alarming leaks from the US prison at Bagram airbase in Afghanistan.

As I explained at the time of President Obama’s national security speech:

Frankly, to even entertain the prospect that a third category of justice (beyond guilt and innocence) can be conjured out of thin air without fatally undermining the principles on which the United States was founded is to enter perilous territory indeed. Fundamentally, Guantánamo is a prison that was founded on the presumption that the Bush administration’s “new paradigm” justified “preventive detention” for life, and although Obama stepped up his assurances at this point in his speech — talking about “clear, defensible and lawful standards,” “fair procedures,” and “a thorough process of periodic review” — it is simply unacceptable that “preventive detention” (which he referred to, euphemistically, as “prolonged detention”) should be considered as an option, however much he tried to legitimize it by stating, “If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight.”

To put it bluntly, it doesn’t matter how much you dress it up. Look at the sentence, “Hold[ing] individuals to keep them from carrying out an act of war,” replace “an act of war” with “a crime, any crime,” and you will, I hope, realize why the proposed policy is so terrifying and so thoroughly unacceptable. If a President came to power promising to “hold individuals to keep them from committing a crime, any crime,” I’d be very worried indeed.

In conclusion, then, the good news is that a new form of “preventive detention” is off the table (although officials told the Times that “it remained an open question whether the administration would seek legislation or establish a new system for indefinite detention of suspected terrorists captured in the future”) and that the estimates of those who will continue to be held indefinitely under the AUMF have been scaled back since defense secretary Robert Gates first floated the notion of “preventive detention” in the weeks before President Obama’s national security speech in May.

On that occasion, Gates told the Senate Appropriations Committee that the question was “still open” as to what the government should do with “the 50 to 100 — probably in that ballpark — who we cannot release and cannot try.” On Wednesday, as the Times explained, that figure had been reduced to 50. Officials explained that, although the administration “has not determined definitively how many detainees that applies to,” they “said it would probably be about 50 of the more than 200 men still held at Guantánamo.”

That, however, is still 50 men too many, and the very existence of our notions of justice depends on continued opposition to the proposal until the administration abandons it completely. If you have any doubt about what we’re dealing with, recall that we are discussing people who are apparently, in the Times’ words, “a continuing danger to national security but who cannot be brought to trial for various reasons, like evidence tainted by harsh interrogations.”

Just think about that. These men cannot be prosecuted because the evidence against them is “tainted by harsh interrogations.” Without the euphemistic veneer, what this means is that no verifiable evidence exists beyond that produced by the use of torture, which, as well as being illegal, is notoriously unreliable because it produces false confessions. I doubt very much that senior officials in the Obama administration would say, categorically, that they are defending as accurate information produced through the use of torture, but by seeking to hold men on no other basis, they are, in effect, attempting to justify the indefinite detention of prisoners through the use of torture, and I think that’s something about which we should all be deeply concerned.

Yesterday I reported that the US government had released three prisoners from Guantánamo, repatriating Alla Ali Bin Ali Ahmed, a Yemeni, and sending two unidentified prisoners — presumed to be Uzbeks — to new homes in Ireland. I suspected that one of the men was Oybek Jabbarov, an Uzbek who was cleared for release from Guantánamo in 2007, but who could not be repatriated because of the well-known human rights abuses in his homeland, and the fact that he had been threatened by Uzbek agents who had been allowed to visit him in Guantánamo.

It has now been confirmed that one of the Uzbeks freed in Ireland is indeed Oybek Jabbarov, and, while I wish him and his unidentified countryman every opportunity to settle into their new home in peace, I want to take this opportunity to reproduce a letter by Jabbarov, sent from Guantánamo last October (PDF), and a statement by his lawyer, delivered to a House Committee last May, to demonstrate how, in contrast to the hyperbolic claims made by Bush administration officials and their supporters, it was disturbingly easy for innocent men like Oybek Jabbarov to end up in Guantánamo.

These men — and there were many hundreds of innocent men in Guantánamo, and many who are still held — were mostly seized by the Americans’ opportunistic allies at a time when bounty payments for “al-Qaeda and Taliban suspects” were widespread, and were then presumed guilty without any screening process by an administration drunk on its own exercise of unfettered executive power, in which everyone who ended up in US custody was an “unlawful enemy combatant” without rights, regardless of whether, like Oybek Jabbarov, they have lost nearly eight years of their lives for nothing more than being in the wrong place at the wrong time.

Oybek Jabbarov’s letter from Guantánamo, October 8, 2008

Greetings. I am a citizen of Uzbekistan. I want to send you this letter to tell you about myself. I am in prison in Guantánamo since June 2002, but I am innocent and I am approved to leave Guantánamo but where can I go? I cannot go back to my native home, Uzbekistan, because it is not safe for me, my wife, and my two sons. I want to go to a free, safe and democratic country and live the rest of my life in peace with my family.

When I get my freedom, I want to work so I can support myself and my family. I am 30 years old. Ever since I was young, I have worked on farms, growing fruits, vegetables, and also raising livestock. It is very hard work, but I enjoy it very much. My hope is to one day study agriculture and to start my own agri-business. But I am accustomed to hard work and I will work at any job to support myself and my family.

Today I am meeting with my lawyer, Mr. Michael Mone, and I am speaking with him in English with no interpreter. Since I have been here in prison for more than six years, I have learned to speak English. When I get out I also want to take a ESL class to improve my English, although my lawyer tells me that I do not need it.

My time here in Guantánamo has been very hard on me and my family. My two sons are growing up without their father. I miss them very much.

It is a big mistake that I am here. I did nothing wrong and I am innocent. But I do not blame the American people for their government’s mistake. Even though I am still here in this prison I have no hate in my heart. My only wish is to get out of here and to be with my family — to see my two sons, and to find a peaceful life.

Thank [you for] your attention to my letter.

Sincerely,

Oybek Jabbarov

Statement by Michael E. Mone, Jr., delivered to the House Committee on Foreign Affairs’ Subcommittee on International Organizations, Human Rights, and Oversight, May 6, 2008

Thank you, Mr. Chairman, for inviting me to speak to the Subcommittee today about my client, Oybek Jamoldinivich Jabbarov, an Uzbek national who is being unlawfully detained at Guantánamo Bay, Cuba.

My client is one of approximately 30 detainees who represent “Guantánamo’s refugees.” These are detainees who have been cleared for release by the US government — for some, years ago, yet they remain imprisoned at Guantánamo because they come from “high-risk” countries where there is a potential danger of persecution or torture should they be forcibly returned, and no country, other than Albania, has been willing to accept these refugees from Guantánamo for resettlement. Indeed, the United States has already transferred detainees from Guantánamo to high-risk countries despite credible individualized fears of persecution or torture upon their repatriation. My client is one of these refugees, who fears repatriation to his native Uzbekistan.

Oybek’s six-year long imprisonment at the hands of the US government is a tragic case of being in the wrong place at the wrong time. Now 30 years old, Oybek and his pregnant wife, infant son, and elderly mother were living with other Uzbek refugees in northern Afghanistan in 2001 when fighting broke out between the Taliban and the Northern Alliance.

Oybek was not captured on the battlefield, nor was he armed. Instead, he accepted a ride from a group of Northern Alliance soldiers he met at a roadside teahouse who said they would give him a ride to Mazar-e-Sharif. Unfortunately, instead of driving him to Mazar-e-Sharif, the soldiers took Oybek to Bagram Air Base where they handed him over to US forces, undoubtedly in exchange for a sizeable bounty. In a desperately poor, war-torn country, Oybek was an easy mark for soldiers responding to leaflets dropped throughout Afghanistan by the US military offering thousands of dollars in cash rewards to anyone who turned over a Taliban or foreign fighter.

After Bagram, Oybek was taken to a prison in Kandahar, Afghanistan, and then transferred to Guantánamo Bay in June 2002. During his first few months at Guantánamo, an FBI agent told Oybek, “You’re a free man, you’re not a problem,” and to be patient while diplomatic arrangements were made for his release. But months turned into years and still nothing happened.

Finally, in February 2007, Oybek received approval from the US government to leave Guantánamo. This news brought little comfort, however, because Oybek fears for his life if he is returned to his native Uzbekistan, a county with a long and well-documented history of human rights abuses, including the widespread use of torture.

Indeed, Oybek had a chilling encounter with Uzbek officials who came to Guantánamo in September 2002 to interrogate him. The Uzbek interrogators told Oybek he would be sent to prison upon his return to Uzbekistan and implied he might face torture to force him to confess to things he did not know.

They asked him questions about the Islamic Movement of Uzbekistan (IMU), an outlawed militant group in Central Asia despised by the Uzbek government. They called Oybek a “Wahhabi” — a pejorative term broadly used by Uzbek authorities to describe individuals they view as radical Islamic extremists. The Uzbek interrogators also told Oybek he would be sent to prison upon his return to Uzbekistan for the alleged crime of “illegally” crossing the border into Tajikistan without a visa — even though no such visa was required at the time. They showed him a photo array and asked if he could identify any of the individuals pictured. When he did not recognize any of the faces, one Uzbek interrogator banged his fist on the table and told him menacingly, “When you go back to Uzbekistan, you will know these things.” Oybek understood the security officer to mean that they would torture him until he told them what they wanted to hear.

My client is more Borat than he is Khalid Sheikh Mohammed. Unfortunately, Oybek fits the very profile of someone who will face persecution, arrest, imprisonment, and torture at the hands of Uzbek authorities. While Oybek would like to practice Islam freely, even the most basic acts of wearing a prayer cap, keeping a beard, and going to mosque in the Ferghana valley, where he is from, are viewed with grave suspicion by the Uzbek security services.

Even worse, the stigma attached to his prolonged detention in Guantánamo will follow him home with dire consequences. The US government has accused Oybek of being a member of the IMU, as well as supporting al-Qaeda and fighting for the Taliban — all of which Oybek denies and for which no credible evidence has ever been proffered. But these accusations are tantamount to a death sentence if Oybek should ever fall into the hands of the Uzbek authorities. Having been branded by the United States as an alleged member of an outlawed extremist group that is especially loathed by the Uzbek government, Oybek should expect to face the harshest legal, even extra-judicial treatment if returned to his country. Yet, despite the grave and obvious danger facing him, the US government refuses to rule out repatriating Oybek to his native Uzbekistan.

Oybek yearns to be reunited with his family — to finally meet his youngest son who was born just after his arrest, but he is afraid he will never see his family again if he is returned to Uzbekistan. He is afraid that if he is returned to Uzbekistan he will be killed.

My client continues to languish behind the thick concrete walls and barbed wire of Camp 5 in Guantánamo [a maximum-security block], the result of a grave mistake, not of his own making. It is our mistake that he sits there and we as a nation need to recognize that Guantánamo does not contain just “the worst of the worst.” It also contains far too many mistakes like my client, a poor soul who was not captured on the battlefield as an armed enemy combatant, but was simply in the wrong place at the wrong time.

We are a great nation, but we are, as our founding fathers envisioned, a perpetual work in progress. Sometimes, our nation has made mistakes — slavery, our treatment of Native Americans, the internment of Japanese Americans, and Jim Crow, to name a few. But part of our greatness lies in our capacity to recognize when we have made a mistake, and to make it right.

Therefore, I think it is fair that we as a nation ask ourselves: How many more days must Oybek remain in Guantánamo for our mistake? How many more days must he sit in his 8×12 cell, before we make it right?

*****

Announcing the arrival of Jabbarov and his unidentified countryman in their new home, the Irish Justice Minister Dermot Ahern explained to reporters, “The resettlement of the two individuals is a humanitarian gesture. They should be allowed time and space to rebuild their lives.” He added, “Ireland is a welcoming country and we are pleased to play our part with President Obama in assisting in the closing of this center [Guantánamo].”

According to the Associated Press, Irish government representatives said that the two Uzbeks “would be housed in state-provided housing at undisclosed locations, and would receive permanent residency rights rather than be treated as refugees,” which would “allow them to work in Ireland and travel within the 27-nation EU.”

The AP also explained that Jabbarov had been “the focus of concerted campaigning by Irish human rights groups that identified his case as a clear-cut miscarriage of justice.” His lawyer, Michael J. Mone Jr., has stated that his client “liked the idea of living in Ireland, in part because it is a land with many sheep. He was a shepherd in Uzbekistan.” The only cloud hovering over his resettlement is the fate of his wife and two young children. As Radio Free Europe reported in January, “His family’s whereabouts are unclear. They were living at a UN refugee camp in Mashhad in Iran, but reportedly are no longer there.”

My hope for Oybek Jabbarov, after his long, cruel and unjust ordeal, is not only that he will be left in peace to resume his life, but also that he will soon be reunited with his family.

Although the Internet has no quality control, those who genuinely have something to say — and who know how to get their message across — will discover that it rewards perseverance and specialization, and that it favors cooperation over self-absorption. Linking, networking, communication: the Internet positively embraces all these, and remains resistant to corporate attempts to raise tollbooths on its highways.

Since May 2007 I have seen the Internet gain more and more readers, as those who seek detailed stories behind the headlines — and, often, stories that are notreportedelsewhere — have learned to search the ‘net, and search engines reflect what they find.

We are still some way from attracting a significant number of entrepreneurs who are prepared to invest in original work online, as traditional media — for the most part — hold onto their established models, but positive developments have begun to take place in this field, and I expect that, in the coming years, investors and advertisers will come to understand the attraction of a medium that has a global reach, but few overheads.

But it is not all doom and gloom. For those who believe in the balance of powers in the United States, the courts have provided a crucial check on Executive power and the feebleness of politicians, exposing the truth about Guantánamo’s system of abuse, torture and false confessions with an admirable objectivity — which is both rare and enormously valuable in the highly-charged world of issues relating to terrorism.

Much remains to be done, of course. Beyond the closure of Guantánamo, there are severe doubts about the legality of the US prison at Bagram (where “rendition” appears to be back in favor, and the Geneva Conventions are still sidelined), there is the largely unwritten story of “America’s Disappeared” (requiring a full accounting of those subjected to “extraordinary rendition” and detention and torture in secret prisons), and there is also, of course, the question of accountability for those who turned America into a Torture Nation.

I’ll be sticking with these stories until a just resolution has been reached, and I hope you’ll be here with me.

On August 30, at “Beyond Guantánamo,” an event organized by Cageprisoners, the British resident Binyam Mohamed, who was subjected to “extraordinary rendition” and torture, and was finally released from Guantánamo in February this year, after nearly seven years in US custody, spoke for the first time in public. Binyam talked about Shaker Aamer, the British resident who is still held in Guantánamo, the establishment of the Guantánamo Justice Centre (which I covered here), and the conditions in Guantánamo, and he also urged those in the audience to look inside themselves to discover what they might be able to give to the campaign against injustice. A video of his talk is available below (via YouTube):

Other speakers, whose talks were also recorded (and can be found on the Cageprisoners site here) include former prisoner Sami al-Haj (El-Hajj), speaking about a number of current and former prisoners (with former prisoner Bisher al-Rawi translating), former Guantánamo guard and Muslim convert Terry Holdbrooks, Ahmed Ghappour (an attorney with Reprieve), journalist Yvonne Ridley, and the poet Amir Sulaiman, reading from the book Poems From Guantánamo. Also included is a recitation by former Guantánamo prisoner Moussa Zemmouri.

Reuters, following up on an announcement by the Justice Department, has just reported that three prisoners have been released from Guantánamo. Two men, who have not been identified, have been sent to Ireland, following successful negotiations between the Irish government and Daniel Fried, the Obama administration’s Special Envoy to Guantánamo. Their identities are being protected to help with their resettlement, but it seems likely, from previous discussions mentioned in the Irish media, that they are both Uzbeks, who were cleared for release from Guantánamo many years ago by military review boards established under the Bush administration, but who could not be repatriated because of fears that they would be tortured on their return.

The third man, Alla Ali Bin Ali Ahmed, is a Yemeni, whose habeas corpus petition was granted by Judge Gladys Kessler in May this year. In her ruling, which I described at length in two articles at the time, “Judge Condemns ‘Mosaic’ Of Guantánamo Intelligence, And Unreliable Witnesses,” and “Guantánamo: A Prison Built On Lies,” Judge Kessler “demolished the government’s case against him, painting a disturbing picture of unreliable allegations made by other prisoners who were tortured, coerced, bribed or suffering from mental health issues, and a ‘mosaic’ of intelligence, purporting to rise to the level of evidence, which actually relied, to an intolerable degree, on second- or third-hand hearsay, guilt by association and unsupportable suppositions.” The case was one of the highlights of the prisoners’ successes in the courts, which, to date, have resulted in 30 victories out of 38 hearings, as I reported here, here and here, with updates here and here.

Although it is reassuring that Ali Ahmed has finally been released to Yemen, it remains sadly apparent that only 14 Yemenis have been repatriated since the prison opened, and that nearly a hundred Yemenis remain in Guantánamo, stuck, for the most part, because the US and Yemeni governments cannot reach a mutually satisfactory agreement regarding their return. Although exact figures are unknown, it has long been apparent that 12 of the Yemenis still held were approved for transfer by military review boards (some as long ago as 2006), and my research indicates that the US government has no intention of charging, or continuing to hold between half and two-thirds of the remaining Yemenis, if some sort of agreement can be reached.

With these releases, 223 men remain in Guantánamo (and another, Ahmed Khalfan Ghailani, is in prison in New York awaiting a federal court trial that is scheduled to begin in September 2010). 549 prisoners have now been released from Guantánamo (17 since Barack Obama took office), and six have died in the prison.

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer. Email Andy Worthington